Court File and Parties

COURT FILE NO.: 05-263/19 DATE: 20220622

SUPERIOR COURT OF JUSTICE – ONTARIO

IN THE MATTER OF LEPOSAVA ZAGORAC

RE: Ivan Zagorac, Applicant AND: Nina Zagorac, Leposava Zagorac, Sean Michael Scanlan and the Public Guardian and Trustee, Respondents

BEFORE: C. Gilmore, J.

COUNSEL: Areta N. Lloyd, Counsel for the Applicant Nina Zagorac appearing on her own behalf

HEARD: June 14, 2022

ENDORSEMENT on application

Introduction

[1] This is Ivan Zagorac’s (“Ivan”) motion for a declaration that his mother Leposava Zagorac (“Mrs. Zagorac”) is incapable of managing property and personal care and that such decisions must be made by a person on her behalf.

[2] In addition, Ivan seeks a declaration that Powers of Attorney for Property and Personal Care dated October 30, 2019 (the “2019 POAs”) are invalid due to Mrs. Zagorac’s incapacity, that the revocation of the Powers of Attorney for Property and Personal Care dated November 13, 2017 (the “2017 Revocations”) are invalid due to Mrs. Zagorac’s incapacity, and a declaration that the February 13, 2015 Powers of Attorney for Property and Personal Care (the “2015 POAs”) are valid.

[3] If this Court determines that the 2017 Revocations are valid, Ivan seeks to be appointed as the Guardian of Property for Mrs. Zagorac and seeks Orders for Directions with respect to the Passing of Accounts. If the 2017 Revocations are valid Ivan seeks to be appointed as Guardian of Personal Care for Mrs. Zagorac jointly with his sister, the Respondent Nina Zagorac (“Nina”).

[4] Nina opposes the relief sought. While she now agrees that the 2017 Revocations and the 2019 POAs are invalid, her position is that her mother did not have capacity and was unduly influenced with respect to the 2015 POAs. She opposes the Guardianship Plan proposed by Ivan. Nina’s position is that Ivan should not be trusted as Guardian of Property due to his past history and the likelihood that he will not follow their mother’s wishes by selling her home. She and Ivan cannot work together as Guardians for Personal Care. Nina has cared for her mother continuously and made her personal and financial decisions. It is in Mrs. Zagorac’s best interests that Nina remain her sole caregiver and Guardian for Personal Care.

[5] For the reasons set out below, the relief sought by Ivan is granted and the 2015 POAs shall take effect immediately.

The Adjournment Request

[6] At the commencement of the hearing, Nina sought an adjournment. She wished to file further evidence which she said was very important for the Court to know. Nina submitted that she has been diagnosed with major depression and has had trouble completing her court materials because of her depression. Further, the time involved in caring for her mother while she is at Baycrest means that Nina has had little free time to focus on this court proceeding.

[7] Nina provided two affidavits for the hearing: the affidavit of Sadem Isai certifying the translation from Serbian into English of Neurological Reports related to Mrs. Zagorac done in Belgrade, Serbia in March and April 2015, and the lengthy affidavit of Vera Vrbica-Matejic (“Beka”) of Serbia sworn May 23, 2022. She submitted that she wished to provide her own affidavit in response to her brother’s motion but for the reasons above, was unable to do so.

[8] I denied Nina’s request for an adjournment for the reasons that follow. Nina provided a letter from her psychiatrist, Dr. Helen Mesaros, dated May 10, 2022. The letter was produced to the Court and Ms. Lloyd on the date of the hearing but not before. The letter was not accompanied by an affidavit and was simply sent as a standalone PDF copy. It is entirely hearsay.

[9] Nina was diagnosed by Dr. Mesaros with a Major Depressive Order, Post-Traumatic Stress Disorder due to physical and emotional abuse in childhood, Anxiety Disorder, Obsessive-Compulsive Disorder and Caregiver Syndrome as full-time caregiver for her mother. Dr. Mesaros also mentioned concerns about family dysfunction.

[10] Nina is currently being treated by way of weekly counselling and psychotropic medications. Dr. Mesaros indicated that Nina’s response to the treatment was favourable but hindered by concerns about the legal process and her mother’s decline.

[11] There was nothing in the letter about this hearing date or Nina’s inability to attend or prepare materials for it. While Nina clearly has diagnosed mental health issues, they are being treated and there was no opinion which prohibited her ability to meaningfully participate in today’s hearing. Indeed, during her submissions, Nina was articulate and organized in her thought process. Her medical condition will likely remain unchanged even if an adjournment was granted.

[12] Nina has known about this hearing date for a considerable period of time. It took three months for the Applicant to obtain a ½ hour scheduling appointment on March 30, 2022 to schedule this hearing date. A litigation timetable was set. Nina submitted her materials late, leaving Ivan only four days to file his Reply Record. In short, Nina has known about this hearing for 10 weeks. It was no surprise to her. Further, once she received the results of Dr. Mitchell’s report in February 2022, I infer that she knew her brother would rely on the report and that further litigation would ensue.

[13] This is not the first time Nina has filed her materials late or asked for an adjournment or extension. These parties came before me on April 26, 2021 to deal with the litigation timetable for the May 28, 2021 motion before Justice Dietrich. Nina was to have filed her responding materials for that motion on April 2, 2021 and did not. She also produced a doctor’s note in support of that extension request. Nina was given until April 30, 2021 to file her responding material over the objections of the Applicant’s counsel as the Applicant had filed his material on March 12, 2021.

[14] Today’s request is quite different. It is not simply a request to extend timing within a litigation timetable, it is a late request to adjourn a long-scheduled hearing. Given the current Court backlog, it is unlikely that another three-hour hearing could be scheduled for a considerable period of time.

[15] Nina’s main reason for the adjournment request is that she needs more time to prepare her material. Respectfully, the Court has what it needs to make the required determinations in this case. The most relevant and impartial records are already before the Court, namely the transcripts, medical records and capacity assessments. Much of this evidence was already before the Court for the May 28, 2021 motion when the Court found that there was evidence to suggest Mrs. Zagorac was incapable.

[16] The new evidence available on this motion is the report of Dr. Mitchell, legal records related to the 2017 Revocations, estate planning records from 2015 and additional medical reports from Serbia from 2015. Those records speak for themselves and do not require more evidence by way of explanation or corroboration.

[17] Nina continues to communicate inappropriately with the Court. This is not the first time she has done so. At 6:09 p.m. on June 14, 2022 (the day of this hearing) Nina sent an email directly to me, copying Ms. Lloyd, the PGT and Mr. Scanlan. In her email, she goes on at length making accusations about Ms. Lloyd, the spelling of her family name and her personal challenges. This communication was given no weight whatsoever by the Court and Nina was asked by the Office of the Regional Senior Justice not to communicate with the Court directly.

[18] Finally, there is urgency in dealing with this matter. Mrs. Zagorac is now at Baycrest waiting for a space in long-term care. There must be a person or persons in authority to deal with her property and personal care decisions. Her medical condition continues to decline in a manner that is of concern to all involved. The family dissension in this case has caused unnecessary delay which must end here.

[19] The Court must also advert to what is best for Mrs. Zagorac. It is not in her best interest to adjourn this matter to what the Trial Coordinator has confirmed would have to be a date during the week of October 31, 2022 given the current Court schedule. That is simply too long a wait for the return of this matter in all of the circumstances. As such, the adjournment request was denied, and the hearing proceeded as scheduled.

Background

[20] Mrs. Zagorac is 69 years old. She has two children, Ivan and Nina. Samuel Peter Domski (“Samuel”) is Ivan and Nina’s half-brother. Samuel has never lived with Mrs. Zagorac. He is not a party to these proceedings.

[21] Nina has always lived with her mother other than some brief periods where she resided overseas. Nina is employed as a security guard.

[22] Sean Scanlan (“Sean”) is Nina’s live-in partner. He moved into the family home with Nina in 2009. At that time, he started to pay $500 per month in rent. He stopped paying rent in November 2019 purportedly so he could help Nina with her legal fees. He has not filed a Notice of Appearance or any materials in this matter. Sean also works as a security guard. Sean was recently added by Nina as a joint holder of one of Mrs. Zagorac’s accounts.

[23] Ivan has not lived with his mother since March 2016. When he lived with his mother, he helped her with her income tax and finances. He now lives with his wife and two children. Both he and his wife work full time.

[24] Mrs. Zagorac always had tenants in her home. At times, her rental income has been as high as $2,100 per month.

[25] Mrs. Zagorac has about $60,000 in cash investments and her home which is worth about $1.6M. She receives pension and rental income which totals approximately $4,000 per month. Currently her income is less as some tenants have left.

[26] Mrs. Zagorac retired from her job as an actuarial analyst at age 61in 2013. She was formerly represented by Steven Safieh. Mr. Safieh advised the Court that due to his client’s mental decline he has not been able to obtain instructions from her since October 2021. He has therefore not filed any material in response to this motion and did not appear on the motion.

[27] The Public Guardian and Trustee (the “PGT”) did not file material on this motion other than a screening letter dated June 13, 2022. The PGT takes no position on the POA issues. While the PGT does not formally oppose Ivan’s Management Plan, the PGT queries what security would be put in place in the event that Ivan sells his mother’s home.

[28] Mrs. Zagorac suffers from corticobasal syndrome, a rare neurodegenerative disease whose symptoms are similar to Alzheimer’s symptoms.

[29] In 2015, Mrs. Zagorac executed the 2015 POAs and a Will with Andrea Tratnik of Beard Winter LLP. She appointed Ivan as her POA for Property with Nina as the alternate and Ivan, Nina and Samuel as joint POAs for Personal Care. When Nina learned about these documents, she contacted her mother’s lawyer with the intention of having them changed.

[30] In January 2016, Nina emailed Ms. Tratnik and advised that her mother had been pressured into signing the 2015 POAs and Will and that she would be changing them and cancelling a previously scheduled appointment with Ms. Tratnik.

[31] In July 2017, Ivan noticed an increase in his mother’s spending and was concerned about the possibility that Nina was mismanaging his mother’s assets. Nina denied that she had misused her mother’s funds and took offence at the fact that her caregiving of her mother was being challenged. In November 2017, Nina took her mother to the Advocacy Centre for the Elderly to revoke the 2015 POAs.

[32] In September 2018, a designated capacity assessor, Ingrid Boiago, found Mrs. Zagorac capable of revoking, changing or assigning her POAs. In October 2019, Ms. Boiago completed a second report with the same findings.

[33] In 2019, Ivan had increasing concerns about his sister’s financial decision-making on behalf of their mother given her own history of personal money mismanagement. He was also concerned about his mother being left alone while Nina and Sean were at work. It was clear that her cognition was rapidly declining, yet Nina was insistent that her mother was capable of making her own decisions.

[34] Ivan commenced the within Application in 2019. In response to the issues raised by Ivan in his 2019 Application, Nina changed her mother’s bank password, phone number and the house locks. Nina claimed that it was her mother who made these decisions. When asked to produce information about her mother’s accounts, Nina responded that she would do so only on her mother’s instructions. Nina now agrees that her mother did not have the capacity to make decisions or give instructions in 2019.

[35] On October 30, 2019, an injunction Order was made preventing Nina from dealing with her mother’s assets other than receiving a $3,000 monthly allowance for her caregiving needs.

[36] Two weeks after the October 30, 2019 injunction Order was made, Nina took her mother to a lawyer, Mr. Reginald McLean, and obtained the 2019 POAs which named her as the POA for Property and Personal Care for her mother with Sean as the alternate. Ivan challenged the validity of the 2019 POAs. This further increased the tension between Ivan and Nina.

[37] Nina undertook to pass her accounts by March 2020, but still has not done so. It was agreed that she would provide an informal accounting which she had done but Ivan maintains that the accounting remains deficient. Nina’s former counsel indicated that the accounts were almost ready but since Nina terminated her counsel’s services there has been no indication of when they will be produced.

[38] The parties attempted mediation but were not successful. The parties were not able to come to an agreement on a joint management plan for their mother. In November 2020, Nina advised the Case Management judge that if she was denied responsibility for the care and management of her mother, she and Sean would move away and leave Mrs. Zagorac on her own.

[39] On June 23, 2021, this Court ordered that Mrs. Zagorac undergo a capacity assessment, including a retrospective capacity assessment back to 2015 (the “assessment”). Neither Mrs. Zagorac nor Nina agreed with the decision. Leave to appeal that decision to the Divisional Court was sought and denied on September 16, 2021.

[40] The capacity assessment was undertaken in November 2021 and completed by Dr. Sara Mitchell of Sunnybrook Hospital in February 2022. The assessment concluded the following:

a. Mrs. Zagorac is incapable of managing her property and personal care or revoking or appointing any Powers of Attorney for Personal Care or Property;

b. Mrs. Zagorac was incapable of appointing an Attorney for Personal Care or Property in 2019;

c. Mrs. Zagorac was likely incapable of appointing an Attorney for Personal Care or Property in 2017.

d. The last time that Mrs. Zagorac was likely able to appoint an Attorney for Personal Care or Property was in early 2015.

[41] Mrs. Zagorac’s health and capacity continue to decline. She has been hospitalized on multiple occasions since November 2021. Her condition is worsening, and she is increasingly delirious with psychotic episodes. At times she is uncooperative with support workers and attempts to “escape.” Mrs. Zagorac’s health care workers advise that she is no longer safe at home and must be moved to a long-term care facility. She is currently at Baycrest awaiting a space in a long-term care facility. Nina is opposed to her mother living anywhere but at home. She objects to the food and caregiving provided by Baycrest and submits there are language barriers which prevent her mother’s needs from being met. Nina does not agree that her mother should be placed in long-term care.

The Positions of the Parties

Ivan Zagorac

[42] Ivan submits that he is the best steward of his mother’s property at this time. It is clear that his mother can no longer reside at home and as such, major financial decisions must be made imminently. Given the rapid dissipation of her assets over the last five years, Mrs. Zagorac cannot afford 24/7 care in her home. The best solution may be to sell her home and place her in a well-appointed long-term care facility. The house sale proceeds would be used to pay for her care. Ivan is aware that his mother wanted to remain in her home as long as possible. If recommended by her medical professionals, he is prepared to have her moved back home and pay Nina for caregiving using his mother’s rental and pension income. However, given his mother’s current condition, that plan may not be feasible.

[43] Nina has never made a plan, proposed a budget or passed her accounts. She is not reliable in terms of money and her own personal financial situation illustrates this. Nina admitted during the hearing that she has filed a consumer proposal with CIBC and that she is not a good money manager.

[44] Nina has made questionable financial decisions while acting as POA for Property. She undertook a bathroom renovation using only high-end materials. The renovation cost more than $45,000. Nina rarely cooked for Mrs. Zagorac but instead spent money on take-out and restaurant food. Nina recently purchased two hospital beds for her mother when it was clear that Mrs. Zagorac was not likely to remain at home. Nina’s monthly withdrawals from Mrs. Zagorac’s accounts consistently exceeded her income. Nina spent $84,000 more than her mother’s income in a period of 20 months between 2018 and 2019. After Ivan reported Nina’s suspicious financial activity to the police in September 2019, Nina returned over $5,000 to her mother’s account. When Ivan questioned Nina about the financial issues, she responded by changing their mother’s bank password, the lock to the house and claimed that her mother no longer wished to see Ivan.

[45] Ivan relies on other evidence filed in support of previous motions. In Samuel’s affidavit sworn November 1, 2019, he deposes that he spoke to his stepmother once or twice a month. His stepmother had a brain scan in Serbia when she went there in 2015 to sell some property. She was diagnosed with “white matter disease.” Samuel was concerned about Nina’s refusal to follow up on this diagnosis given what he noted to be a serious cognitive decline in his stepmother.

[46] Samuel also noted Nina’s questionable spending habits. Initially, Nina told Samuel the quote to make the bathroom accessible for her mother was $12,000. He later learned that the bathroom cost more than $40,000. Further, the bathroom remained unusable for more than three months which meant that his stepmother had to climb stairs each time she needed to use the bathroom. Samuel was shocked when he saw his stepmother’s financial statements showing that her savings had been depleted by over $100,000 in 18 months. His stepmother had always been frugal and he did not believe she would have approved of Nina’s spending on her behalf.

[47] Ivan also relied on the affidavit of Fahrija Avdakovic sworn on December 9, 2019. Ms. Avdakovic was a good friend of Mrs. Zagorac and at one point stayed with the Zagorac family for eight months while her apartment was being renovated. She mentioned to her friend her concern about the daily delivery of books Nina received. Nina’s parents were very concerned about her spending habits.

[48] After 2015, Mrs. Avdakovic noticed that her friend’s health was declining. She suggested to Nina that Mrs. Zagorac receive treatment. Nina was resistant and it took a long time for her to agree to take her mother to see a neurologist. When visiting Mrs. Zagorac, Mrs. Avdakovic noticed there was not much food in the fridge. When she offered to assist Nina with the preparation of some simple meals, Nina refused stating that she prefers to order food from restaurants.

[49] Mrs. Avdakovic became concerned that Mrs. Zagorac was being left alone for long periods of time. Her phone number no longer worked, and she could not reach Nina to find out the problem. At a visit with Mrs. Zagorac in October 2019, she noted that her friend’s thoughts were very confused and that she was suddenly very angry with Ivan. This seemed odd to Mrs. Avdakovic as Mrs. Zagorac had never said anything negative about Ivan before. She noted that Nina constantly said negative things about Ivan with her mother present.

[50] Ivan’s position has been and continues to be that his mother is vulnerable to influence from Nina and that she manipulated her mother into signing both the 2017 Revocations and the 2019 POAs. He further asserts that Nina isolated his mother from the rest of the family when they began to challenge her financial management of their mother’s affairs and her caregiving decisions. Nina has described herself as a person with a shopping addiction. Her diminishment of her mother’s liquid assets after the 2017 Revocations was shocking. Nina continued to assert that her mother was able to make decisions on her own up to the point of the publication of Dr. Mitchell’s report. Her position was untenable given that Dr. Mitchell’s report found that Mrs. Zagorac had lacked capacity since at least 2017.

[51] Ivan submits that Nina refused to admit that their mother was experiencing cognitive decline since 2015. She refused to take her to see a neurologist and instead focused on alternative therapies not covered by OHIP. Nina was always very secretive and did not advise Ivan that he was his mother’s POA for Property until November 2017 when it was revoked.

[52] Ivan’s position is that there is ample evidence that his mother was capable to execute the 2015 POAs and Will and that the 2017 Revocations and 2019 POAs should be declared invalid.

[53] In the event that the Court finds that his mother did not have capacity in 2015, Ivan submits that he has presented as comprehensive a Management Plan as possible given that he does not have all of his mother’s current financial information. He undertakes to provide a more fulsome plan to the PGT within six months of being appointed Guardian of Property and again within two months of the sale of his mother’s home. He would pass his accounts every three years thereafter.

[54] Nina is opposed to Ivan becoming Guardian of Property or POA under the 2015 POAs because she understands this means that her mother’s house may be sold. Nina’s rent-free ride must end, and she will have to actually pay her own expenses. Nina’s self-serving interests in keeping their mother at home and controlling her finances are obvious.

Nina Zagorac

[55] While Nina acknowledges that her mother requires full time care, she insists that this can be done at home. Her mother has always told her she wanted to stay in her home. Nina opposes Ivan’s plan because she knows it may involve the sale of her mother’s home which is contrary to her mother’s clearly stated wishes.

[56] Nina conceded that she does not contest Dr. Mitchell’s findings with respect to the 2017 Revocations or the 2019 POAs. Of course, this is very different from Nina’s previous position that her mother had capacity throughout 2017 and 2019. Nina vigorously opposed Ivan’s motion for a capacity assessment in May 2021, maintaining that her mother was still able to make decisions on her own and that such an assessment would be an invasion of her mother’s privacy. Nina’s explanation for her current change in position was that after reviewing Dr. Mitchell’s report and looking back, she “sees things differently now.”

[57] Her position on this motion is that her mother has not had capacity since 2015, and that she was unduly influenced by Ivan with respect to the 2015 POAs and Will. By way of example, Nina referred to her mother’s tax filings up to 2015 and the fact that she had to arrange an escort for her mother at the airport when she came back from Serbia in 2015. There was no evidence of either of these examples before the Court.

[58] Nina told the Court that her mother was severely depressed in 2015 after the death of her mother. Her mother was burnt out from the extreme caregiving for her own mother in the months leading up to her death and she was tormented by the physical abuse she witnessed by her husband against Nina and Ivan. While there was also no evidence of this before the Court, Nina submitted that her mother could not have been capable of giving instructions for the 2015 POAs and Will given what was going on in her life at the time.

[59] With respect to the alleged undue influence in relation to the 2015 POAs, Nina questions Ms. Tratnik’s notes. She submits that Ms. Tratnik interviewed her mother with her brothers present and that much of what is in the initial notes came from her brothers and not her mother. No one told her about the 2015 POAs and she says she has an email from Ivan telling her that he and Samuel decided to deliberately cut her out of being a POA for Property. Nina did not produce this email. Nina also submitted that Ms. Tratnik blind copied Ivan on email correspondence and that Ivan was overly involved in the process at a time when her mother was depressed and in a cognitive decline.

[60] Nina therefore proposes that she and Ivan should be the joint Guardians of Personal Care for their mother. She opposes Samuel being included as a joint Guardian of Personal Care. She submitted that Ivan and Samuel “ganged up” on her and bullied her when they were children. She is convinced they would do the same if they were all joint POAs for Personal Care.

[61] As for the Guardian of Property, it should not be Ivan alone. He is not trustworthy with money. She mentioned that when her grandmother was sick, Ivan transferred $11,000 out of his mother’s account to himself. He transferred $6,000 to Nina. Ivan pressured their mother to sell her apartment in Belgrade, Serbia. Once sold, he insisted that his mother give him 40,000 Euros from the sale. Nina also received 40,000 Euros. Nina told the Court that she found $14,000 in her mother/grandmother’s safety deposit box. She did not take a lot for herself and deposited the rest in her mother’s account. She also took a few gold coins which she now told the Court that she would share with Ivan. Nina admitted that she has had spending problems in the past and at one time was buying too many books. She told the Court that she eventually intends to read them all.

[62] Nina proposes that Christine Brunston be appointed as Guardian of Property. Ms. Brunston assisted Nina with preparing an informal Court ordered accounting of her mother’s property. However, Ms. Brunston did not provide an affidavit to the Court or her consent to act as Guardian. It appears that Ms. Brunston is not actually aware that Nina was proposing her as Guardian of Property.

[63] Nina denied her brother’s allegations of financial mismanagement. She did not pay twice to have her mother’s roof re-done. When it was completed the first time, it still leaked. She had further repairs done at her own expense of over $6,000. She used her mother’s funds to pay a contractor to remove raccoons who were dangerous and causing damage to the attic. She used her mother’s money to have a large backyard tree pruned and secured so that it was safe for neighbours. She used her mother’s money to upgrade the insulation in the attic which was old and below Building Code specifications. She does not view those financial decisions are unreasonable.

[64] Nina admitted that she did not consult her brother about the bathroom renovation because she knew he would just say no. She also admitted that the cost for the renovation got out of hand and if she had planned it better, it would likely have cost less. However, Nina submitted that her mother was not upset about the cost. She gave Ivan $45,000 for his wedding and honeymoon to Hawaii. Mrs. Zagorac viewed her renovated bathroom as her “Hawaii.”

[65] Nina told the Court that she had made major personal sacrifices in relation to the caregiving of both her late grandmother and her mother. She has given up both educational and work opportunities which she fears she will never get back. Her partner Sean has also been a faithful and steadfast partner and caregiver for her mother. She and Sean arranged to take opposite work shifts so that her mother was never left alone. This affected their relationship as they rarely saw one another.

[66] Nina’s strongly held view is that she is the person who knows her mother best and she should be integrally involved in her caregiving. Ivan should never be the sole Guardian of Property as he is untrustworthy, does not treat women with respect and will cut Nina out of any decision-making.

Mrs. Zagorac

[67] Mrs. Zagorac swore an affidavit in response to Ivan’s May 2021 motion. The affidavit was sworn on April 2, 2021. With the report of Dr. Mitchell now available, it appears impossible that Mrs. Zagorac could have instructed counsel or have understood the contents of the affidavit.

[68] The affidavit contains a litany of complaints about Ivan and glowing compliments in relation to Nina and Sean. In her affidavit she states, “I don’t believe my mind is so bad as Ivan alleges.” This statement is of course entirely contradictory to the findings of Dr. Mitchell who concluded that Mrs. Zagorac had no understanding of her own decline and limitations.

[69] I therefore do not and cannot rely at all on Mrs. Zagorac’s own evidence. It was obtained at a time when she was clearly incapable, influenced by Nina and contains statements which resonate as those of Nina.

Analysis and Ruling

Nina’s Evidence

[70] There are several problems with the evidence that Nina has placed before the Court. The first problem is the evidence of the 2015 medical reports from Serbia in March and April 2015. These reports show that Mrs. Zagorac was experiencing forgetfulness and speech difficulties at that time. Her MMSE screening was 24/30. The diagnosis included onset dementia.

[71] Nina told the Court that she only found these reports recently as they were “buried” in her parent’s personal papers. It is of concern to the Court that Nina “found” these reports only when her position on her mother’s capacity in 2015 changed and these reports became helpful to her. The Court is concerned about Nina’s manipulation of evidence apparently in a way which benefitted her when needed.

[72] Ms. Lloyd submits that even if the 2015 reports had been before Dr. Mitchell, they would not have changed her opinion. The MRIs done in Serbia in 2015 were available to Dr. Black, Dr. Mitchell and Dr. Tal and did not change their position about Mrs. Zagorac’s capacity in 2015. That is, Mrs. Zagorac had dementia and some depression in 2015 but that did not mean she did not have the capacity to sign her POAs and Will at the time. It is important to note that Ms. Tratnik did not state any concerns with Mrs. Zagorac’s capacity in her detailed notes.

[73] I agree with Ms. Lloyd that while having the Serbian medical reports from 2015 would have been helpful to Dr. Mitchell, it is unlikely they would have changed her opinion about Mrs. Zagorac’s capacity in 2015.

[74] Nina filed the affidavit of Beka, sworn May 23, 2022, in support of her response to Ivan’s motion. Beka is a long time Serbian friend of Mrs. Zagorac. She has always lived in Serbia and has kept in touch with Mrs. Zagorac through phone and Skype calls. Almost all of Beka’s affidavit is hearsay and speculation because she has never lived in Canada or with Mrs. Zagorac.

[75] Most of Beka’s affidavit in recounting events after 2012 and up to 2015 is composed entirely of hearsay evidence which she obtained from Nina. Beka did make certain observations of her friend when Mrs. Zagorac visited Belgrade in 2015 to sell her apartment. Beka described Mrs. Zagorac as “shattered” and “like a child” while still grieving for her mother.

[76] Beka was critical of Ivan’s actions regarding the sale of the apartment in Belgrade although there was no evidence she was involved in any way with the transaction. Beka did not hesitate to offer her own opinion on just about everything. For example, “I think the whole sale of that apartment was against her will…in 2015 she was not capable of managing property by herself….I think she was deciding under Ivan’s pressure…Ivan did not ask Nina if she wished to keep anything from the apartment…he did not care what his mother or sister wish or think….she was not capable – not even physically… Mom[Leposava?] felt helpless here, but she was not conscious of her helplessness.”

[77] Beka and her grandson visited Mrs. Zagorac in Toronto in 2017. She noted that Mrs. Zagorac was in better spirits than she had been in Belgrade in 2015 and that her home was clean and she was well taken care of. She speculated that if Mrs. Zagorac is forced to leave her home, her dog, Nina and Sean, it would be the end of her.

[78] Beka’s affidavit, while well-intentioned, is self-serving, appears to have been mostly prepared by Nina (the inadvertent reference to “mom” is concerning), and is filled with speculation and hearsay. I give no weight to this affidavit.

Dr. Mitchell’s Report

[79] Dr. Sara Mitchell is a highly respected neurologist working out of Sunnybrook Hospital in Toronto. She is also an Assistant Professor at the University of Toronto Medical School. Her distinctions and research awards are too numerous to include in these reasons. Suffice it to say Dr. Mitchell has significant experience in assessing and working with dementia patients. Her background and experience in that area supported her well reasoned and clear report which is entirely accepted by this Court.

[80] In preparing her report, Dr. Mitchell reviewed the following documents:

a. A brain MRI of Mrs. Zagorac done in March 2015

b. A neurological assessment completed by Dr. Sandra Black in July 2015

c. Consultation Reports from Dr. David Tal, geriatrician, dated September and December 2015 including treatment recommendations

d. Mrs. Zagorac’s family physician records dated July 2018

e. Capacity Assessment of Ingrid Boiago, RN, dated September 30, 2018

f. Cognitive Assessment report of Emily Zhou, RN – August 20, 2019.

g. Toronto LHIN Clinical Notes Report – August 23, August 29 and November 4, 2019, March 1, 2021

h. Family Physician note dated October 29, 2019.

i. Head MRI February 27, 2020.

j. Consultation Report, Dr. David Tang-Wai, Neurologist dated February 26, 2020.

[81] Dr. Mitchell conducted a cognitive and neurological examination on Mrs. Zagorac on November 10, 2021 with a Serbian interpreter present. Mrs. Zagorac scored a 0 on the mini mental exam. She did not know what year it was, the season, the date, the province she was in or the hospital in which the examination was being conducted. Mrs. Zagorac was unable to perform simple math, name objects or write anything including her own name. She stuttered and had difficulty finding words. At times she would scream and cry apparently out of frustration from her lack of ability to communicate. Mrs. Zagorac had no insight into her condition.

[82] Dr. Mitchell concluded that Mrs. Zagorac was suffering from dementia by 2015 and has had a precipitous decline in cognitive and physical functioning in the past seven years. She currently has global cognitive impairment, significant aphasia and significant motor impairment. She also presents with dense memory and executive function impairment which impairs her ability to perform functions such as decision making and judgment. Mrs. Zagorac is not able to manage her own property or personal care and requires a substitute decision maker due to her advanced dementia. As of November 10, 2021, Mrs. Zagorac was not able to revoke or grant POAs for Property or Personal Care.

[83] Dr. Mitchell reviewed the medical evidence in relation to allegations related to the 2015 POAs which were executed on February 13, 2015. She concluded that Mrs. Zagorac was in the early dementia stage of her illness but still able to execute a POA for Property and Personal Care. By December 2015, testing revealed that Mrs. Zagorac scored 21/30 on the MOCA test which was still in keeping with mild dementia.

[84] Dr. Mitchell went on to review the time period in November 2017 when Mrs. Zagorac revoked the 2015 POAs. She opined that a conservative estimate of cognitive decline in dementia would be two points per year. This would have put Mrs. Zagorac at a MOCA score of 17/30 which is in keeping with moderate dementia. Thus, Mrs. Zagorac’s ability to revoke the 2015 POAs in 2017 would have been compromised and she would have been vulnerable to external pressures.

[85] Dr. Mitchell rejects Ms. Boiago’s findings in her capacity assessment of September 30, 2018. She found it directly at odds with two specialist assessments by a cognitive neurologist and geriatrician three years prior. She noted that no cognitive testing was done to substantiate Ms. Boiago’s opinion.

[86] Less than a year after Ms. Boiago’s assessment, in August 2019, a comprehensive cognitive assessment report done by Emily Zhou, R.N. noted a MOCA of 14/30 (indicating moderate to severe dementia) and that Mrs. Zagorac required assistance with even the most basic tasks of daily living. A LHIN report from August 23, 2019 noted that Mrs. Zagorac could no longer prepare food, do housekeeping tasks, banking, leave the house without supervision and was incontinent.

[87] A month after these reports, Ms. Boiago found in her second assessment dated October 1, 2019 that Mrs. Zagorac was capable of revoking, changing or assigning her POAs as she chose. Dr. Mitchell calls these conclusions “poorly informed” given that no cognitive testing was done on Mrs. Zagorac nor was there reference to any of the comprehensive reports on Mrs. Zagorac’s cognitive abilities done in 2019. Dr. Mitchell further concludes that, therefore, Mrs. Zagorac would not have been capable of granting a POA for Property or Personal care on October 25, 2019 due to her severe cognitive impairment. She notes that only four months later, on February 26, 2020, Dr. David Tang-Wai noted severe dementia with a diagnosis of corticobasal syndrome, a rare progressive neurodegenerative process. Dr. Mitchell agrees with this diagnosis.

The 2015 POAs and Alleged Undue Influence

[88] The factors for undue influence are listed in para. 77 of John Gironda et al. v. Vito Gironda et al., 2013 ONSC 4133, which states:

[77] The applicants also argue that this is a situation which supports a finding of undue influence. The history of the parties’ relationship is vital to an examination of capacity where undue influence is, or could be, present. Indications of the potential for undue influence include where the testator is dependent on the beneficiary for emotional and physical needs, where the testator is socially isolated, where the testator has experienced recent family conflict, where the testator has experienced recent bereavement, where the testator has made a new will not consistent with prior wills, and where the testator has made testamentary changes simultaneously with changes to other legal documents such as powers of attorney.

[89] As per Johnson v. Huchkewich, 2010 ONSC 6002, a diagnosis of dementia or low MOCA scores are not necessarily determinative of capacity: at para. 44.

[90] Given Nina’s acceptance of Dr. Mitchell’s findings of incapacity in 2017 and 2019, the Court will focus on the issues related to the 2015 POAs. It must be mentioned here that Nina’s change of position on the issue of her mother’s capacity is startling to say the least. Significant years of court time and legal costs have been spent because Nina insisted that her mother had capacity to revoke the 2015 POAs and make new ones in 2019. I agree with Ms. Lloyd that Nina was disingenuous about her mother’s limitations excusing their impact as less consequential than it was and searching for other diagnoses.

[91] Nina used her mother’s alleged capacity as a shield for taking nonsensical positions in this litigation. For example, when Nina changed the locks on her mother’s home and told Ivan he was no longer welcome, she said this was what her mother wanted. This was at the end of 2019 when Mrs. Zagorac was already suffering from severe dementia. Only three months later, Dr. Tang-Wai diagnosed her as having corticobasal syndrome and that she had been in decline since 2011. Dr. Mitchell made it clear that Mrs. Zagorac was vulnerable to outside influences.

[92] I find that Mrs. Zagorac was overwhelmingly influenced by Nina with respect to the positions she has taken in this litigation (when she had counsel), the revocation of her POAs, and the making of new ones in 2019 when it was clear that she had no capacity to do so.

[93] Of course, the second issue raised by Nina’s radical change in position in this litigation is that if she now concedes her mother has had no capacity since 2017, how was it that Nina was acting on the 2019 POAs? It cannot be ignored that Nina provided the 2019 POAs to the bank and other authorities to allow her to act on her mother’s behalf. Yet, she is now conceding she had no authority to take such steps because she “sees things differently” as a result of Dr. Mitchell’s report. Her position is illogical and entirely rejected by this Court.

[94] It is clear from reports done after 2015 that one of the effects of Mrs. Zagorac’s condition was her loss of English. She was previously fluent in English, having used it every day in her job since she came to Canada. Unfortunately, her decline included a complete inability to speak anything but Serbian. This meant that Nina was integrally involved in all of Mrs. Zagorac’s communication with her lawyer and the sole interpreter for her mother. I have already found that Nina influenced her mother and that her mother was vulnerable to such influence. The conclusion reached by Ivan is that Nina directed her mother’s litigation. I agree.

[95] It is important to review Ms. Tratnik’s notes in relation to the preparation of the 2015 POAs. Nina submits that her mother had no capacity at that time and was unduly influenced by both Ivan and Samuel with respect to the POAs. Dr. Mitchell concludes that Mrs. Zagorac had capacity at that time. Ivan agrees.

[96] Ms. Tratnik’s notes reveal that she initially met with Ivan, Samuel and Mrs. Zagorac on February 4, 2015. Her notes recite a list of Mrs. Zagorac’s property and instructions for her Will and POA. The list is comprehensive. Nina complains that all of this information and the instructions actually came from Ivan and were not her mother’s own instructions. I reject this argument. Ms. Tratnik’s notes are clear that she met with Mrs. Zagorac separately after the joint meeting with Ms. Tratnik and Ivan and Samuel to confirm all of her instructions without Ivan and Samuel present. This is confirmed by Ms. Tratnik’s memo to her file dated February 4, 2015.

[97] Nina also submits that there is information in Ivan’s writing in Ms. Tratnik’s file. She is suspicious of how it got there. The information in Ivan’s writing is simply a list of the correct spelling of the family names, his mother’s phone number and email address. It contains no instructions of any kind.

[98] On February 13, 2015, Ms. Tratnik met with Mrs. Zagorac to sign her Will and POAs. Ms. Tratnik’s file memo notes that Ivan brought his mother to the meeting but was asked to leave the room when the documents were being explained to Mrs. Zagorac and signed. Mrs. Zagorac asked questions about the POA for Property. She considered whether to make Ivan and Nina joint POAs for Property but ultimately decided to leave Ivan as the sole POA for Property with Nina as the alternate.

[99] There is nothing in Ms. Tratnik’s notes on either February 4 or February 13, 2015 which indicated any concern with Mrs. Zagorac’s capacity or any undue influence by Ivan or Samuel.

[100] The next file entry is a file memo from Ms. Tratnik dated January 8, 2016. Nina had called Ms. Tratnik’s office about making changes to her mother’s Estate planning. Ms. Tratnik called Mrs. Zagorac who advised she wanted to make changes to her Will. She then corrected herself and said she wanted to make changes to her POAs. Ms. Tratnik stated, “I could hear Nina in the background guiding her on what to say.” Ms. Tratnik told Mrs. Zagorac that it sounded like she was being pressured to make changes and that the decisions were hers alone to make. Mrs. Zagorac explained that she wanted to make changes because of issues between Nina and her son. Mrs. Zagorac indicated that she would like to have a meeting with Ms. Tratnik and that it was fine if Nina and Ivan were there. She understood that most of the meeting would be with Ms. Tratnik and Mrs. Zagorac alone and that she would not be subject to any pressure during that meeting.

[101] On January 11, 2016, Nina emailed Ms. Tratnik. She explained that she only recently received a copy of the 2015 POAs and Will (which she should have received in 2015) and that they were directly contrary to her mother’s wishes. She advised that her mother did not understand what she was signing as it was not fully explained to her. She then indicated that the appointment set up by Ms. Tratnik was to be cancelled.

[102] Ms. Tratnik responded later on the same day and reminded Nina that attorneys do not have the right to receive estate planning documents even if they are named in them. Ms. Tratnik noted the following (my emphasis):

….It is my impression that changes are being proposed in light of such friction and I do have some concerns that your mother is being pressured - when I spoke with your mother on the phone, I could hear you coaching her on what to say in the background. To me this is a red flag. I think a serious discussion needs to be had among the family members and with your mother so that everyone understands what their role is.

[103] Nina responded on January 12, 2016. She denied that she had been coaching her mother. She reiterated that it was in fact her brothers who had pressured her mother into signing documents she did not understand in 2015.

[104] Ivan had been copied on Ms. Tratnik’s email to Nina. Ivan wrote back to Ms. Tratnik and expressed concern that in fact it was his sister who was pressuring their mother, not him. He also raised the issue of his mother’s decline in cognition and that a year later she had already been diagnosed with several brain issues. Ms. Tratnik responded that an in-person appointment with Mrs. Zagorac would be required in order to discuss any changes and that issues of capacity and undue influence would be reviewed at that time.

[105] Ms. Tratnik’s notes and memos are clear and comprehensive. While this was not sworn evidence, it was not challenged by Nina as being inaccurate in any way. The notes of Ms. Tratnik reveal that Nina was upset when she found out that Ivan had been named the sole POA for Property and decided that the documents should be changed. Her allegation that her mother was pressured into signing something that she did not understand is completely without foundation. In fact, Ms. Tratnik is careful in her February 13, 2015 memo to confirm that she met alone with Mrs. Zagorac to sign the documents and reviewed them with her entirely. She answered Mrs. Zagorac’s questions and offered to defer the meeting if Mrs. Zagorac was unsure about anything.

[106] Nina alleges that her mother distrusts Ivan and does not want him to be her POA for Property or Personal Care. Mrs. Zagorac says as much in her affidavit sworn April 2, 2021. I have already given that affidavit no weight in light of Mrs. Zagorac’s lack of capacity at the relevant time. Further, given my finding that Nina was directing her mother’s litigation because of her influence and her position as interpreter, I do not give any weight to Nina’s interpretation of her mother’s wishes with respect to Ivan. I find that from the moment Nina discovered the existence of the 2015 POAs she was on a mission to seek revenge on her brother and obtain status as her mother’s POA for Property and Personal Care. This included obtaining the 2017 Revocations and the 2019 POAs notwithstanding glaring indications of incapacity on the part of her mother, directing her mother’s litigation and speaking negatively of Ivan in front of her mother.

[107] Of note is that when Ivan was able to visit his mother (which was not often due to Nina’s repeated position that her mother did not want to see him), Mrs. Zagorac was welcoming and happy to see him. Therefore, I reject Nina’s insistence that her mother does not want Ivan to have any authority to make decisions on her behalf. Rather, I rely on Mrs. Zagorac’s clear and informed decision to name Ivan as her POA for Property in 2015 based on legal advice, information and her own clear choice.

[108] I do not find that Mrs. Zagorac was under any undue influence by any of her children with respect to either the instructions or signing of her POAs in 2015. On the contrary, once Nina found out about them in 2016, she was the sibling who began to influence her mother. Ms. Tratnik’s concerns about influence by Nina are noted more than once in her file. It was also Nina who arranged the appointment at ACE to facilitate the POA Revocations and the appointment with Mr. McLean for the 2019 POAs.

[109] Applying the facts in this case to the enumerated factors indicative of undue influence in Gironda, I find as follows:

a. Mrs. Zagorac was not dependent solely on Nina in 2015 when she signed the 2015 POAs. Ivan was still living with her at that time. Any influence from her children at that time would have been equal.

b. While Mrs. Zagorac’s mother died in 2014 after a lengthy illness, I do not see that this could have made her unfit to give instructions to Ms. Tratnik. Indeed, there is no medical evidence to corroborate such a contention by Nina.

c. The 2015 POAs were not inconsistent with any prior documents. The evidence is that this is the first time that Mrs. Zagorac signed any Estate Planning documents.

d. There is no evidence as to how Ivan chose Ms. Tratnik or whether his mother was involved in that choice. I find this to be a neutral factor in this case. In contrast, it was solely Nina who located and took her mother to ACE for the 2017 Revocations. It was solely Nina who located and took her mother to Mr. McLean for the 2019 POAs.

e. As to the communication of instructions, while it is true that Ivan and Samuel were present at the initial meeting in February 2015, Ms. Tratnik carefully and professionally ensured that Mrs. Zagorac was always interviewed alone to confirm her instructions and understanding. I do not find that Ivan or Samuel were “influencers” in terms of instructions as contemplated in Gironda. In contrast, it is clear from the notes from ACE that Nina provided almost all of the information for the 2017 Revocations. She also provided all relevant background information to Ms. Boiago and Mr. McLean.

[110] On the issue of capacity in 2015, this Court rejects Nina’s contention that her mother did not have capacity in February 2015 for the following reasons:

a. Dr. Mitchell’s report states that Mrs. Zagorac had mild dementia at the time but at an insufficient level to affect her ability to make or change a POA.

b. Ms. Tratnik in her careful files notes never indicated any concern about capacity issues on the part of Mrs. Zagorac in February 2015.

c. Ivan’s evidence was that he and his brother Samuel arranged the appointment in February 2015 because of concerns about his mother’s forgetfulness. He wisely wanted to assist his mother in arranging her affairs before her decline became worse.

d. Ms. Tratnik’s notes from February 13, 2015 indicate that Mrs. Zagorac understood the documents she was signing and asked reasonable questions about them.

e. Mrs. Zagorac communicated with Ms. Tratnik by email in July 2015 and sent a cheque to her for her account. Because the payment was late, Mrs. Zagorac enquired whether she owed interest.

f. Mrs. Zagorac did not require a Serbian translator during her meetings with Ms. Tratnik. Her loss of English because of her cognitive decline did not occur until much later.

g. There is no indication that the lawyer who acted on the sale of her apartment in Belgrade in the spring of 2015 had any issues with respect to her capacity to sign the required sale documents.

[111] In conclusion and based on all of the findings above, I find that Mrs. Zagorac had capacity and was not unduly influenced with respect to the 2015 POAs. The 2015 POAs will stand.

Orders and Costs

[112] The November 13, 2017 Revocations of the 2015 POAs is invalid and void ab initio on the grounds that Mrs. Zagorac did not have capacity to make such revocations.

[113] The October 30, 2019 POAs are invalid and void ab initio on the grounds that Mrs. Zagorac did not have the capacity to instruct counsel or make the 2019 POAs.

[114] The 2015 POAs shall stand on the grounds that Mrs. Zagorac had capacity at the time of making them. The 2015 POAs shall take effect immediately.

[115] Mrs. Zagorac’s accounts shall be forthwith unfrozen, and Ivan Zagorac shall be entitled to use his authority under the 2015 POA for Property to access those accounts.

[116] Nina Zagorac and Sean Scanlon shall not be entitled to access any accounts owned by Mrs. Zagorac.

[117] Nina shall be required to pass her accounts (as previously ordered) by no later than August 31, 2022. Ivan may bring a contempt motion if she fails to do so.

[118] In the event that Ivan Zagorac determines, as POA for Property, that it is necessary to sell Mrs. Zagorac’s home, he shall pass his accounts as POA for Property within two months of such sale and shall account to the Court as to his plan for use of the funds for his mother’s care.

Costs

[119] The parties shall provide written submissions on costs not exceeding three double spaced pages, exclusive of any Bill of Costs or Offers to Settle. The costs shall be exchanged on a 7- day turnaround starting with the Applicant seven days after the release of this decision. Costs submissions are to be sent electronically to my assistant at therese.navrotski@ontario.ca.

[120] If no costs submissions are received within 35 days of the release of this decision, costs will be deemed to be settled.

C. Gilmore, J.

Date: June 22, 2022